News Release ~ 09/27/2012

Dog Sniffs and the Fourth Amendment at the Supreme Court Early This Term

Washington, DC (September 27, 2012) – On October 31, 2012, the Supreme Court will hear arguments in two important personal privacy cases concerning drug dogs and the Fourth Amendment. Both cases come to the U.S. Supreme Court from the Supreme Court of the State of Florida. The National Association of Criminal Defense Lawyers (NACDL) filed joint amicus curiae (friend-of-the-court) briefs in both cases. These cases have significant implications for individuals’ privacy rights in their homes and the future use of technologically enhanced searching devices by law enforcement. The impact of these cases has been addressed in a two-part podcast produced by NACDL, and will be further addressed in a live, free event on October 23, 2012. Details are below. NACDL’s experts are available for comment and can be reached by contacting NACDL’s Public Affairs Office.

The first case, Florida v. Jardines (No. 11-564), presents the Court with the question of whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause. The Florida Supreme Court held below that “the warrantless ‘sniff test’ that was conducted at the front door of the residence in the present case was an unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment.” In a joint amicus brief submitted to the U.S. Supreme Court, NACDL and the Florida Association of Criminal Defense Lawyers (FACDL) argue that the Supreme Court should affirm, suggesting that “law enforcement’s use of a narcotics-detection dog to sniff a house, in order to discover whether the house contains evidence of wrongdoing that would otherwise remain concealed, is a ‘search’ within the meaning of the Fourth Amendment.”

The second sniff case, Florida v. Harris (No. 11-817), arises out of a traffic stop. This case, also scheduled to be argued on October 31, presents the court with the question of whether an alert by a narcotics-detection dog that law enforcement asserts is ‘trained’ or ‘certified’ is sufficient as a matter of law to establish probable cause for a warrantless search, without any additional evidence of the dog’s reliability. The Florida Supreme Court below held that:

“[T]he fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability. The trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances.”

In a joint amicus brief submitted to the U.S. Supreme Court, NACDL, FACDL, the American Civil Liberties Union (ACLU), and the ACLU of Florida argue that the Supreme Court should affirm the decision of the Florida Supreme Court, arguing that “under a totality-of-the-circumstances approach, the mere fact of training or certification, standing alone, cannot be sufficient to establish probable cause[,]” as “a number of different factors are relevant to the question whether a particular dog is sufficiently reliable for its alert to establish probable cause,” including “the rigorousness of the training or certification program; records of the dog’s actual performance in the fields, including its history of false alerts; and the experience and training of the dog handler.” The brief argues that excluding those factors, as urged by the State of Florida, “significantly weakens the Fourth Amendment’s central protection against unreasonable searches.”

In addition, on September 14 and 21 respectively, NACDL released a two-part podcast on these cases featuring Danielle Spinelli, an NACDL member and principal author of NACDL’s joint amicus briefs in both Florida v. Jardines and Florida v. Harris; Dr. Lawrence Myers, a leading dog sniff expert who teaches at Auburn University; and NACDL’s National Security and Fourth Amendment Counsel Mason Clutter. These and all previous episodes of NACDL’s “The Criminal Docket” podcast series are available free of charge at www.nacdl.org/thecriminaldocket as well as in Apple’s iTunes store.

Finally, mark your calendars now. NACDL is sponsoring a free program on these cases, including a dog sniff demonstration, at the National Press Club in Washington, D.C., at 9:00 a.m. on Tuesday, October 23, 2012. A media alert providing further details about this program will issue next week.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.